Monday, 15 February 2016

Offensive Online Comments - New ECtHR Judgment

Earlier this month, the European Court delivered what can be seen as its first post-Delfi judgment on offensive online user-generated content. It is my pleasure to present a guest blog with critical comments on this case by Dirk Voorhoof and Eva Lievens of Ghent University:

On 2 February 2016,
the European Court of Human Rights decided that a self-regulatory body (Magyar
Tartalomszolgáltatók Egyesülete, MTE) and an Internet news portal (Index.hu
Zrt) were not liable for the offensive comments posted by their readers on
their respective websites. Anonymous users of MTE and Index.hu Zrt had posted vulgar
and offensive online comments on a real estate website, following the publication
of an opinion on MTE and Index.hu Zrt critisising the misleading business practices of two real estate websites. The
European Court found that by holding MTE and Index.hu Zrt liable for the
comments, the Hungarian courts had violated the right to freedom of expression
as guaranteed by Article 10 ECHR. The present judgment is the
first in which the principles set forth in the controversial
Grand Chamber’s judgment in Delfi AS v. Estonia are
tested.

The perspective of Delfi

The Delfi AS judgment of 16 June 2015
considered the monitoring and removal of user comments taken on initiative of
the providers of an online platform with user-generated content (UGC) as the
necessary way to protect the rights of others, at least in cases where it
concerned hate speech and incitement to violence. The Grand Chamber emphasised the
professional running and commercial character of the news platform at issue,
together with the clearly unlawful content of the readers’ comments as decisive
arguments in order to justify the finding of the liability of the internet news
portal for their readers’ offending comments. The Grand Chamber at the same
time tried to limit the impact of its judgment by clarifying that the case did
not concern “other fora on the Internet” where third-party comments can be
disseminated, for example an internet discussion forum or a bulletin board
where users can freely set out their ideas on any topic without the discussion
being channelled by any input from the forum’s manager. Consequently, the Grand
Chamber’s judgment was neither applicable on a social media platform where the
platform provider does not offer any content, nor in cases where the content
provider is a private person running the website or a blog “as a hobby”. By
restricting the impact of its judgment both to hate speech and “clearly
unlawful content” with adirect
threat to the physical integrity of individuals and to professional,
commercially run online news platforms with UGC, the question remained how the
Court would decide on the liability in other circumstances than those of the Delfi case.

In MTE and Index.hu Zrt v. Hungary, the
Court had the occasion to answer this question and eventually to clarify the
impact or consequences of the Grand Chamber judgment in a case which allegedly did
not concern hate speech nor direct threats against the physical integrity of individuals,
but ‘only’ wanton insults and vulgar opinions, criticising the business policy
and commercial practices of a corporate company. Another difference with Delfi AS v. Estonia is that the injured
company never requested the applicants to remove the comments, but opted to
seek justice directly in court. And while Index.hu Zrt is run by a commercial company and is one of the major Internet
news portals in Hungary, MTE is a non-commercial website.

MTE and Index.hu Zrt

The case started in
Hungary in 2010, when a real estate company brought a civil action claiming an
infringement of its personality rights, on the basis that its right to a good
reputation had been violated by readers’ comments posted on MTE and Index.hu
Zrt. Anonymous users of MTE and
Index.hu Zrt had posted comments claiming that the company at issue was “sly”
and “rubbish”. One comment uttered that “people like this should go and shit a
hedgehog and spend all their money on their mothers’ tombs until they drop
dead”. The operators of the websites immediately removed
the allegedly offending comments once they were notified of the civil
proceedings. Subsequently, the
domestic courts found that the comments at issue were insulting and went beyond
the acceptable limits of freedom of expression. They rejected the applicants’
argument that they were only intermediaries and that their sole obligation was
to remove certain content, in case of a complaint. As the comments attracted
the applicability of the Hungarian Civil Code rules on personality rights and
since the comments were injurious for the plaintiff, the operators of the
websites bore objective liability for their publication. As the applicants were not considered intermediaries, they could not invoke the limited
liability of hosting service providers, as provided in the Directive 2000/31/EC on Electronic
Commerce. Therefore the applicants were held liable for the
offensive comments on their websites and they were ordered to pay the court
fees, including the
costs of the plaintiff’s legal representation. No award for non-pecuniary damages was imposed.

MTE and
Index.hu Zrt complained that the rulings of the Hungarian courts establishing
objective liability on Internet websites for the contents of users’ comments amounts
to a violation of freedom of expression as provided in Article 10 ECHR. As a
consequence, liability for comments could only be avoided either by
pre-moderation or by disabling commenting altogether: both solutions would work
against the very essence of free expression on the Internet by having an undue
chilling effect. They argued that the application of the “notice-and-take-down” rule,
as a characteristic of the limited liability for internet hosting providers,
was the adequate way of enforcing the protection of reputation of others.

The Judgment of the Fourth Section of
the ECtHR

Referring to Delfi AS v. Estonia, the
European Court took as its starting point that the provisions of the Hungarian
Civil Code made it foreseeable for a media publisher running a large Internet
news portal for an economic purpose (Index.hu Zrt) and for a self-regulatory
body of Internet content providers (MTE), that they could, in principle, be
held liable under domestic law for unlawful comments of third parties. Thus,
the Court considered that the applicants were able to assess the risks related
to their activities and that they must have been able to foresee, to a
reasonable degree, the consequences which these could entail. The Court
therefore concluded that the interference in issue was “prescribed by law”
within the meaning of the second paragraph of Article 10.

The decisive question remained whether there was a need
for an interference with freedom of expression in the interests of the
“protection of the reputation or rights of others”. By referring to its Grand
Chamber’s judgment in Delfi AS v. Estonia
again, the Court confirms that
Internet news portals, in principle, must assume duties and responsibilities.
However, because of the particular nature of the Internet, these duties and
responsibilities may differ to some degree from those of a traditional
publisher, notably as regards third-party content. The Court is of the opinion that the present case was different from Delfi
AS: though
offensive and vulgar, the incriminated comments did not constitute clearly
unlawful speech; and they certainly did not amount to hate speech or incitement
to violence, as they did in Delfi AS. Next, the Court applied the
relevant criteria developed
in its established
case-law for the
assessment of the proportionality of
the interference in
situations not involving
hate speech or
calls to violence. These criteria are: (1) the context and content of the impugned comments, (2)the liability of the authors of the
comments, (3) the
measures taken by the website operators and the conduct of the injured party,
(4) the consequences of the comments for the injured party and (5) the
consequences for the applicants.

The Court considered
that the Hungarian courts, when deciding on the notion of liability in the
applicants’ case, had not carried out a proper balancing exercise between the
competing rights involved, namely between the applicants’ right to freedom of expression
and the real estate website’s right to respect for its commercial reputation.
Notably, the Hungarian authorities accepted at face value that the comments had
been unlawful as being injurious to the reputation of the real estate websites. The European Court, however, held that the comments were related
to a matter of public interest, being posted in the context of a dispute over
the business policy of the real estate company perceived as being harmful to a
number of clients. It also observed that the expressions used in the comments,
albeit belonging to a low register of style, are common in communication on
many Internet portals – a consideration that reduces the impact that can be attributed
to those expressions.

For the
Court, the conduct of the applicants providing a platform for third parties to
exercise their freedom of expression by posting comments is a journalistic
activity of a particular nature. The Court, referring to some its earlier
case-law states:

“Even accepting the domestic courts’ qualification of the
applicants’ conduct as “disseminating” defamatory statements, the applicant’s
liability is difficult to reconcile with the existing case-law according to
which “punishment of a journalist for assisting in the dissemination of
statements made by another person in an interview would seriously hamper the
contribution of the press to discussion of matters of public interest and
should not be envisaged unless there are particularly strong reasons for doing
so”” (§ 79).

The Court
continued by observing that the applicants took certain measures to prevent
defamatory comments on their portals or to remove them. Both applicants had a
disclaimer in their general terms and conditions and had a notice-and-take-down
system in place, whereby anybody could indicate unlawful comments to the
service provider so that they be removed. Holding the applicants liable would
undermine the right to express and impart information on the Internet. The Court considered that

“domestic courts held that, by allowing
unfiltered comments, the applicants should have expected that some of those
might be in breach of the law. For the Court, this amounts to requiring
excessive and impracticable forethought capable of undermining freedom of the
right to impart information on the Internet” (§ 82).

The Court also observed that the injured company

“never requested the applicants to remove
the comments but opted to seek justice directly in court – an element that did
not attract any attention in the domestic evaluation of the circumstances.
Indeed, the domestic courts imposed objective liability on the applicants for
“having provided space for injurious and degrading comments” and did not
perform any examination of the conduct of either the applicants or the
plaintiff” (§ 83).

The Court next emphasised that there is a difference
between the commercial reputational interests of a company and the reputation
of an individual concerning his or her social status:

“Whereas the latter might have
repercussions on one’s dignity, for the Court interests of commercial
reputation are primarily of business nature and devoid of the same moral
dimension which the reputation of individuals encompasses” (§ 83).

Furthermore, there were already ongoing inquiries
into the plaintiff company’s business conduct. Consequently, the Court is not
convinced that the comments in question were capable of making any additional
and significant impact on the attitude of the consumers concerned.

The Court is of the view that the decisive question
when assessing the consequence for the applicants is not the absence of an
award of non-pecuniary damage, but the manner in which Internet portals can be
held liable for third-party comments. According to the Court, “such liability may have foreseeable negative
consequences on the comment environment of an Internet portal, for example by
impelling it to close the commenting space altogether. For the Court, these
consequences may have, directly or indirectly, a chilling effect on the freedom
of expression on the Internet. This
effect could be particularly detrimental for a non-commercial website such as
the first applicant” (§ 86).

The Court
is of the opinion that the Hungarian courts paid no heed to what was at stake
for the applicants as protagonists of the free electronic media, as they did
not embark on any assessment of how the application of civil-law liability to a
news portal operator will affect freedom of expression on the Internet. Indeed,
argued the Court, “when allocating
liability in the case, those courts did not perform any balancing at all
between this interest and that of the plaintiff” (§ 88).

Finally,
the Court referred once more to Delfi AS v. Estonia, in which it found that if accompanied
by effective procedures allowing for rapid response, the notice-and-take-down system
could function in many cases as an appropriate tool for balancing the rights
and interests of all those involved. The Court sees no reason to hold that such
a system could not have provided a viable avenue to protect the commercial
reputation of the plaintiff. It is true that, in cases where third-party user
comments take the form of hate speech and direct threats to the physical
integrity of individuals, the rights and interests of others and of the society
as a whole might entitle Contracting States to impose liability on Internet news
portals if they failed to take measures to remove clearly unlawful comments
without delay, even without notice from the alleged victim or from third
parties. As the present case did not involve such utterances, the European Court
comes to the conclusion that the rigid stance of the Hungarian courts reflects
a notion of liability which effectively precludes the balancing between the
competing rights according to the criteria laid down in the Court’s case-law.
All these considerations were sufficient for the
Court to unanimously conclude that there had been a violation of Article 10.

Comment

In Delfi AS, at the national level, the comments at issue were considered humiliating and
defamatory, impairing the honour, dignity and reputation of an individual,
amounting to simple insults. The European Court however re-qualified the defamatory and insulting statements as hate speech, directly inciting
to violence against a person. The question remains why the Grand Chamber itself
re-qualified the comments as such, and why the Grand Chamber, like in MTE and Index.hu Zrt v Hungary, did not
consider that “regard must be had to the specificities of the style of
communication on certain Internet portals” and that the comments on the Delfi-platform, although belonging to “a
low register of style”, were “common in communication on many Internet
portals” (§ 77).

While in Delfi AS, the Grand Chamber emphasised the commercial and professionally managed character
of the Estonian online news portal (§§ 115, 144, 158 and 162) as a justification for
its accountability and hence its liability, the Fourth Section in MTE and Index.hu Zrt v. Hungary pays
much less weight to the commercial and professional character in order to
determine the websites’ liability for UGC. The judgment of 2 February 2016
indeed does not connect decisive consequences to the different characteristics
of the online platforms at issue, Index.hu Zrt
being run by a commercial company and being one of the major Internet news
portals in Hungary, while MTE is a non-commercial website of a self-regulatory
body of Internet content providers. What seemed to be a crucial element in Delfi AS, is not considered relevant in
MTE and Index.hu Zrt v. Hungary.

In Delfi AS the Grand Chamber also emphasised the news portal’s failure to take
measures to remove “clearly unlawful comments” without delay following
publication. In the present case, the Court recognised that measures had been
adopted by the applicants to prevent the publication of defamatory speech on
its website domains or to remove such comments (§ 81). Furthermore, the Court
highlighted that, in many cases, a “notice-and-take-down-system” could function
as an appropriate way of determining intermediary liability. The latter finding
echoes a consideration of the Grand Chamber in Delfi AS v. Estonia which stated that:

"If accompanied by effective
procedures allowing for rapid response, this system (of
notice-and-take-down) can in the Court’s
view function in many cases as an appropriate tool for balancing the rights and
interests of all those involved” (§ 159).

And it continued:

“However, in cases such as the present one, where
third-party user comments are in the form of hate speech and direct threats to
the physical integrity of individuals, as understood in the Court’s case-law
(..), the Court considers, as stated above (..), that the rights and interests
of others and of society as a whole may entitle Contracting States to impose
liability on Internet news portals, without contravening Article 10 of the
Convention, if they fail to take measures to remove clearly unlawful comments
without delay, even without notice from the alleged victim or from third
parties".

Hence the Fourth Section of the court, in MTE and Index.hu Zrt v. Hungary, simply reiterates and literally
confirms one of the most crucial considerations of the Grand Chamber judgment
in Delfi AS v Estonia. In case of
hate speech and direct incitement to violence against individual persons, news
portals can be held liable if they fail to remove such clearly unlawful
comments without delay, even without notice. As in MTE and Index.hu Zrt v. Hungary the insulting and vulgar statements
where not of such a kind, there is indeed no reason to impose liability on the
portals' operators. In such cases it is to be accepted that the operators took
sufficient precautions and acted as responsible and diligent intermediaries by
installing an effective notice-and-take-down system (§ 81): in such
circumstances there is no need in a democracy to hold the operators of the
website liable for the offending - but “not clearly unlawful”- content posted
on its platform by its readers.

The problem remains, however, that in order to detect hate speech or utterances
of direct incitement to violence one needs to put a system in place to
pre-monitor all user generated comments, in order to be able to remove,
without delay and without notification by others, this specific kind of hate
speech and direct threats to the physical integrity of individuals. Doesn’t
such an obligation to pre-monitor or ‘filter’ incoming comments by users precisely
amount to a system the European Court considers incompatible with the freedom
of expression on the Internet, as this indeed requires “excessive and
impracticable forethought capable of undermining freedom of the right to impart
information on the Internet” (§ 82)? Moreover,
most platforms will not be able to fulfil such an obligation to pre-monitor all
comments in order to avoid liability in case of hate speech or “clearly
unlawful comments”, and, as a result, might decide to disable commenting by
third-parties altogether.

Hence, one can
agree with the Court’s position in MTE
and Index.hu Zrt v. Hungary that “the decisive question” is “the manner in which Internet portals (...)
can be held liable for third-party comments. Such liability may have
foreseeable negative consequences on the comment environment of an Internet
portal, for example by impelling it to close the commenting space altogether.
For the Court, these consequences may have, directly or indirectly, a chilling
effect on the freedom of expression on the Internet” (§ 86). However, the
Court’s judgment in MTE and Index.hu Zrt
v. Hungary and even its finding of a violation of Article 10 ECHR in this
case, does not prevent such a chilling effect on the freedom of expression on
the Internet. Keeping the possibility open that operators of online platforms
can be held liable for clearly unlawful comments, even after expeditious
removal upon obtaining actual knowledge of the illegal content, holds the risk
both of overbroad removal of allegedly illegal content as well as the disabling
of the facilities for posting comments by third parties. The open notion of
“clearly unlawful comments”, the burden on private actors to pre-monitor all
comments and eventually remove some of them, with no clear criteria, no
transparency and no procedural guarantees indeed creates a clear and present
danger for the right to freedom of expression on the Internet.

Although the Fourth Chamber has maybe tried to reduce, to some extent,
the problematic consequences of the approach chosen in Delfi AS v. Estonia, the judgment in MTE and Index.hu Zrt v. Hungary nevertheless reiterates the endorsement
of the system of notice-and-take-down by private online platforms deciding on
the lawfulness of content. This approach risks to put the European Court in an
isolated position, as in some jurisdictions intermediaries can only be found
liable for “unlawful” content when they have failed to take action following
notice from a judge, a court or another independent body as to the illegality
of the relevant content. Intermediary service providers are less well-placed
than courts to consider the lawfulness of comments on their website domains.
Especially qualifying speech as hate speech is a very difficult and delicate
exercise, not only for domestic courts, but also for the European Court of
Human Rights. This is illustrated by
case-law of the Strasbourg Court itself, as various cases (e.g. I.A. v.
Turkey; Lindon,
Otchakovsky-Laurens and July v. France; Féret v. Belgium and Perinçek v. Switzerland),
concerning the question whether certain speech could or should be qualified as
hate speech resulted in divided votes (see also Vejdeland and
others v. Sweden, especially the discussion in the concurring opinions).
Moreover, decisions by online platforms currently lack transparency and their
decision-making contains few or no procedural guarantees (e.g. possibilities
for recourse and remedy in case of removal of ‘lawful’ content) for those whose
right to freedom of expression is interfered with.

Quoting
from the concurring opinion of Judge Kūris, one
can conclude that “there will inevitably be other cases
dealing with liability for the contents of
Internet messages and the administration thereof. Today, it is too early to
draw generalising conclusions. One should look forward to these
future cases, with the hope that the present judgment, although it may now
appear to some as a step back from Delfi AS, will prove
to be merely further evidence that the balance to be achieved in cases of this
type is a very subtle one”. It is to be hoped indeed that the European Court in
future cases will succeed to find this subtle balance, taking into
consideration that the obligation to (pre-)monitor, filter and remove certain
types of comments by users on online platforms puts an “excessive
and impracticable” burden on the operators
and risks to oblige them to install a monitoring system “capable of undermining freedom of the right to impart information on
the Internet”.

Dirk
Voorhoof

Ghent
University (Belgium), Copenhagen University (Denmark), Legal Human Academy and
member of the Executive Board of the European Centre for Press and Media
Freedom (ECPMF, Germany)

Eva Lievens

Ghent
University and member of the Flemish Regulator for the Media (Belgium)